Drug companies says there are bogus Digitek suits

By Steve Korris | Aug 7, 2009


CHARLESTON – Drug companies Actavis Totowa and Mylan Pharmaceuticals claim they have detected bogus lawsuits in national litigation over heart medicine Digitek.

"It is clear that many cases without any merit have been filed," Richard Dean of Cleveland wrote to U.S. District Judge Joseph Goodwin on July 14.

Goodwin presides over Digitek suits from around the nation by appointment of the U.S. Judicial Panel on Multi District Litigation.

Plaintiffs started suing Actavis Totowa and Mylan Pharmaceuticals last year, alleging injuries from adulterated and misbranded pills.

A Food and Drug Administration recall triggered the litigation.

According to Dean, some lawyers sued without necessary information.

"Medical records produced to date reveal many cases where deaths are clearly related to other medical issues," he wrote to Goodwin.

He wrote that in many cases there was no evidence of toxicity from Digitek.

He wrote that "it becomes apparent in a cluster of cases that neither plaintiffs nor their counsel have been in possession of medical or pharmacy records when suit was filed."

He wrote, "In such cases, there could have been no good faith belief in a factual basis to support the litigation."

Federal rules require an attorney to conduct a reasonable investigation of the factual and legal basis for a claim before filing, he wrote.

"Defendants believe the minimum factual investigation required before filing cases like these is to obtain and review the medical records," he wrote.

He told Goodwin that plaintiffs objected to requests for admissions, and he moved to determine the sufficiency of the objections.

"Defendants' requests do not seek discovery of evidence admissible at trial to disprove the merits of individual plaintiffs' claims," he wrote.

"Rather, defendants seek evidence to support the filing of a motion to dismiss or for sanctions under the federal rules of civil procedure," he wrote.

Dean represents Actavis Totowa. Harvey Kaplan of Kansas City, Mo., placed his name on the motion for Mylan Pharmaceuticals.

Answering for plaintiffs on July 30, Fred Thompson of Motley Rice in Mount Pleasant, S.C., called the requests impermissible and irrelevant.

He wrote that Goodwin must sustain the objections "to prevent the opening of a potential floodgate of litigation."

He wrote, "Judicial resources are not plentiful enough to permit spin-off litigation over sanctions to take place within this already complex MDL," he wrote.

Goodwin referred the motion to Magistrate Judge Mary Stanley.

On Aug. 3, Goodwin ruled that Mylan Pharmaceuticals can't lighten its litigation load by pleading that it didn't manufacture Digitek.

Mylan Pharmaceuticals moved to dismiss counts of failure to warn, manufacturing defect, and design defect, but Goodwin denied the motion.

"The exact relationship between the defendants, their knowledge of material events, the timing of their receipt of that knowledge, and the impact those fact intensive questions may have on the application of the unsettled, governing law all counsel in favor of allowing the challenged counts to proceed to discovery," he wrote.

The master complaint against Actavis Totowa and Mylan Pharmaceuticals alleges 19 counts including wrongful death, fraud, negligence and misrepresentation.

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